Foreign experience, and domestic practice of legal regulation of special principles of administrative procedure

Abstract

The article is devoted to the analysis of special principles of administrative procedure. The author has studied the administrative procedure legislation of Germany, Kyrgyzstan, Azerbaijan, Croatia, Switzerland, Lithuania, and Austria. The authors compare the legislative provisions on special principles of administrative procedure of these countries with the legislation of Ukraine with the Law of Ukraine «On Administrative Procedure» which is coming into force.
 It is noted that administrative procedure is not homogeneous and standard, but rather has many features and variations depending on: (a) a specific area of public administration, (b) goals, objectives, and functions of executive authorities, and (c) national traditions and international standards. Therefore, it is necessary to conduct a comparative legal analysis of the special principles of administrative procedure that determine the specifics of their legal regulation in different national legal systems.
 The authors identify a system of four «layers» of principles applicable to administrative procedure. Among them, the author distinguishes the following: (1) general legal principles; (2) principles of administrative law; (3) principles of administrative process as a procedure for exercising power by public administration bodies in the appropriate procedural form based on the world and European principles of good governance and administration; (4) principles of administrative procedure.
 The main attention is paid to the special principles of administrative procedure which relate to the administrative procedure itself. Among them, it is proposed to distinguish two groups: (a) organisational and (b) functional axiological. The author substantiates that the organisational principles include the principle of economy, investigative principle, the principle of the State language, impartiality, publicity, and coordination. As functional axiological principles, the author identifies the following: the principle of prohibition of abuse of law and prohibition of over­formalism, the principle of uniform application of law, presumption of reliability, the principle of interpretation of law in favour of interested non-governmental persons, and the principle of meaningful absorption. Each of the principles is given a significance and its place in the legislation of Ukraine and other countries.
 The authors concludes that further syste­matisation and consolidation of these principles, in turn, is an additional argument in favour of the Law of Ukraine «On Administrative Procedure» which is currently coming into force and its possible further modifications.